Testing prisoners for psychoactive substances

Part of Prisons and Courts Bill – in a Public Bill Committee am 3:00 pm ar 29 Mawrth 2017.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Sam Gyimah Sam Gyimah The Parliamentary Under-Secretary of State for Justice 3:00, 29 Mawrth 2017

I want to pay tribute to the incredible work that our prison officers and support staff do every day. They work in an incredibly challenging environment and do a very brave job indeed. The new clause highlights some of the more challenging circumstances that they face when an offender spits or bites a prison officer. I also want to put on the record now that I recognise the additional worry and stress that prison officers can face waiting, as the hon. Member for Halifax has mentioned, often for several months to discover whether, in addition to the assault they have suffered, they have contracted a transferable medical condition. I therefore welcome the debate that that raises. I know that the hon. Lady has raised this issue before in relation to assaults on emergency workers. The only concern, and why we will resist the new clause, is that, as currently drafted, I can see some legal and practical difficulties, which I will outline.

A detailed regime applicable to securing samples from prisoners already exists under the powers set out in a Prison Service instruction in the Prison Act 1952. The powers enable testing for illegal activity and testing for drugs either by randomised samples or where there is a suspicion of drug use. Section 16B of that Act provides a power to test for alcohol. Changes in clause 22 of the Bill extend testing powers to psychoactive substances. Testing can be voluntary or mandatory and is normally conducted by urine testing and other non-invasive testing methods.

It is not clear to me, however, where the main focus of the power in the new clause lies. Is it for the detection of crime—proving the assault—or is it to provide information quickly to the prison officer involved about the risk of a communicable disease? A testing power without specific safeguards does not serve to understand what the purpose of a test is.

Also, significant practical issues have to be considered. Under PACE, other than urine tests, all intimate samples, including blood samples, can be taken only by a registered medical practitioner or registered healthcare professional. A blood sample cannot be taken by a police officer under the PACE regime in a similar situation. Prison officers are simply not trained to take blood samples. They are not medical professionals, and the sterile medical conditions required are not always available in prisons.

I would also be concerned to avoid situations in which prison officers, owing to a lack of medical training and the absence of a provision requiring prisoner consent in taking blood samples, found themselves accused of assault.

We need to consider what impact the use of the power would have on the relationship between prisoners and prison officers, which is crucial to successful offender management. The safeguards on consent, testing processes and data protection are needed for practical and legal reasons. Without sufficiently circumscribed criteria giving rise to the power to take samples; without suitably qualified staff to take the samples; and without proper training of staff and fair and proportionate penalties for non-compliance, the power is unlikely to be compatible with article 8 rights, and the Government cannot support it.

Having said that, I want to make some additional points about what can be done now. As we set out in our “Prison Safety and Reform” White Paper, we are committed to improving the safety of prisons for all who live and work there. We do not tolerate any behaviour against staff that undermines their essential work. Staff must have the confidence that assaults against them will be met with a robust and swift response.

To that end, we are taking an evidence-led approach to improving prison safety. I have already mentioned the 2,500 staff in the new key worker regime that we are rolling out. I believe that increased numbers will also enable more staff to be available on wings, to increase staff confidence in the support that they have available from colleagues, and that they will also act as a deterrent to assaults by prisoners on staff.

Additional staff will also mean more predictable regimes, reducing prisoner frustrations and providing opportunities for purposeful engagement. We already have a well established process for sanctioning violence in prisons. A range of sanctions is available, from downgrading privileges, segregation and adjudications. Cases that are serious enough are heard by an independent adjudicator, who has the power to add up to another 42 days to a prisoner’s sentence.

Governors are also required by the published adjudications policy to refer more serious assaults to the police for investigation. It is worth stressing that an assault that involves biting may be charged as a more serious offence of assault occasioning actual bodily harm, rather than the lower level common assault, depending on the nature of the injuries sustained. Spitting and biting can also be considered as aggravating factors within the offence, meriting a more severe sentence. Any sentence imposed should also, in accordance with sentencing guidelines, be served consecutively to the existing sentence.

Finally, there are also some technical issues relating to the penalties for failing to comply with a test. I do not want to labour the points, but I think that the hon. Member for Halifax has raised some important matters in the debate and, as I said at the outset, I completely understand the thinking behind the new clause. I sympathise with the intention, but given the legal and practical difficulties in the drafting, we cannot support it at this point. I therefore urge the hon. Lady to withdraw the new clause.